Immigration Issues/H1B extension and 6 year limit

QuestionQUESTION: Hi - I ve been in H1B visa since Mar 2005. I ve stayed outsie US (in India) for the period Jan '08 to June 09 (more than 1 yr). My 6 yr limit for H1B expires on June 12. Since I've stayed outside US for more than a yr, will my clock get reset? i.e prev aggregates not getting counted towards the 6 yr stay? I'm not finding anything which states this. I've been in same H1 petition though, and have been extending it. Let me know if you need more details.

ANSWER: Hi,

You have 2 options: either obtain extension until June, 2012, or apply for a new 6 year period since you were continuously outside the U.S. for at least a one year period from Jan. '08 to June '09, thus resetting the six year clock. However, if you want to reset the clock, you will be subject to the visa cap. The information below (an excerpt from a USCIS Memorandum) may be helpful:

8 CFR 214.2(h)(13)(i) provides that when an alien has reached the maximum period of
admission, a new petition may be approved only if the alien has remained outside the United
States for one year. The statute, regulations, and current policy guidance, however, do not
clearly address situations where an alien did not exhaust his or her maximum six-year period of
admission.
There have been instances where an alien who was previously admitted to the United States in
H-1B status, but did not exhaust his or her entire period of admission, seeks readmission to the
United States in H-1B status for the “remainder” of his or her initial six-year period of maximum
admission, rather than seeking a new six-year period of admission. Pending the AC21
regulations, USCIS for now will allow an alien in the situation described above to elect either (1)
to be re-admitted for the “remainder” of the initial six-year admission period without being
subject to the H-1B cap if previously counted or (2) seek to be admitted as a “new” H-1B alien
subject to the H-1B cap.
Specifically, the “remainder” period of the initial six-year admission period refers to the full six-year
period of admission minus the period of time that the alien previously spent in the United
States in valid H-1B status. For example, an alien who spent five years in the United States in
H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, could seek to be admitted in January 2006 for the “remainder” of the initial
six-year period, i.e. a total of one year. If the alien was previously counted toward the H-1B
numerical limitations in relation to the time that has accrued against the six-year maximum
period of admission, the alien would not be subject to the H-1B cap. If the alien was not
previously counted against the H-1B numerical limitations (i.e. because cap-exempt), the alien
will be counted against the H-1B cap unless he or she is eligible for another exemption.
In the alternative, admission as a “new” H-1B alien refers to a petition filed on behalf of an H-1B
alien who seeks to qualify for a new six-year admission period (without regard to the alien’s
eligibility for any “remaining” admission period) after having been outside the United States for
more than one year. For example, the alien who spent five years in the United States in H-1B
status (from January 1, 1999 - December 31, 2004), and then remained outside the United States
for all of 2005, is eligible to apply for a “new” period of H-1B status based on his or her absence
of at least one year from the United States. Most petitioners electing this option will seek a
three-year H-1B petition approval, allowing for the possibility of later seeking a three-year H-1B
extension. “New” H-1B aliens are subject to the H-1B numerical limitations unless they qualify
for an exemption.

---------- FOLLOW-UP ----------

QUESTION: Hi - Thanks for the response. I have my visa extended already till June2012. this was done on June 2010. My question is, if i apply for a visa extn on June 2012, will it automatically be considered as a new petition, and be given, subject to cap approval for that year?

AnswerHi,

When applying for H1B extension effective June 2012, I recommend that the employer in a cover letter to the USCIS specifically request that this H1B petition be subject to the visa cap. In addition, on Form I-129 there is an option to select being subject to the visa cap.

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

OrganizationsAmerican Immigration Lawyers Association (AILA) full member since 1995.

Education/CredentialsAjay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.